really saw, vary in what it occurs to them to invent under the pressure of cross-examination.

¶ 333. Contradictory Depositions.--The necessity of proving that any particular statement, which was charged as being false evidence, was false to the knowledge of the party making it, raised a considerable difficulty, where a defendant had made two statements so contradictory that one or other of them must be false. It might be difficult or impossible to prove which of the two was false; and if the prosecution selected one of the two as being false, the tribunal which tried the case might think it was true, and acquit the prisoner. In Madras, Reg. III. of 1826 authorized the prosecution to prove the two contradictory statements, which was sufficient to secure a conviction, if the judge was of opinion that in one or other of them the defendant must have been telling a wilful untruth. A similar practice, founded apparently upon a futwah delivered in 1831, sprang up in Bengal. The original draft of the Penal Code contained nothing bearing upon the subject, but the Indian Law Commissioners, in their second Report of 1847, s. 154, p. 387, expressed a strong opinion that the mere fact that a person had in any stage of a judicial proceeding given a statement on oath which directly and positively contradicted another statement similarly given, should render him liable to punishment. The Penal Code and the Crim. P.C. of 1861, which came into force on the same day, contained provisions which were apparently intended to carry out this view. At first it was assumed that, even in the case of contradictory statements, it was necessary to prove which was false, and many conflicting decisions were recorded, even after a contrary ruling had been given. Finally, it was agreed by all the High Courts, that where the two statements were so irreconcilable, that one or other must necessarily be false, it was unnecessary to offer any evidence to negative either assertion.3

1 Per Duthoit, J., 7 All., p. 52.

2 Penal Code, s. 72; Crim. P.C., Act XXV. of 1861, ss. 242, 381, 382. 8 This was so decided upon the Crim. P.C. of 1861 by a Full Bench of the Calcutta High Court, in Reg. v. Mt. Zameran, 6 Suth. Cr. 65; S.C. B.L.R., Sup. Vol., 521, and by the Madras High Court in the case of Palany Chetty, 4 Mad. H.C. 51; upon the Crim. P.C. of 1872 by a Full Bench of the Calcutta High Court, Reg. v. Mahomed Humayoon, 13 B.L.R. 324; S.C. 21 Suth. Cr. 72; upon the Crim. P.C. of 1882 by the High Court of Allahabad, Reg. v. Ghulet, 7 All. 44, and by the Bombay High Court, Reg. v. Ramji Sajabarao, 10 Bom. 124.

334. It is hardly necessary to remark, that the mere circumstance that the same man, at different times, made contradictory statements upon the same point, is by nc means conclusive proof of guilt. Either statement may have been made under the influence of forgetfulness, or misapprehension; or he may, when he made the second statement. have discovered the falsity of what he had believed to be true when he made the first statement. Still less would it be safe to convict, when each statement merely conveys an expression of opinion: for instance, as to the identification of property, or the similarity of handwriting The statements must relate to matters so necessarily within the knowledge of the party on both. occasions, that one or other statement must have been known to be false when it was made. For instance, if a man were at one time to swear that he had been beaten and robbed, and at another time were to swear he had neither been beaten nor robbed, either assertion may be true, but he must have known one or other to be untrue. In charges founded upon supposed contradictory statements, every presumption in favour of the possible reconciliation of the statements must be made.1

¶ 335. It will be observed that the form of charge given for such cases, though it comes under the list of charges with two or more heads, differs from all the other forms in the same list in this respect they charge the same transaction as possibly constituting one or other of different offences. It charges two transactions, either of which may be innocent, as establishing that by means of one or other of them, it is immaterial which, he has committed the single offence charged. "The course allowed by the law was adopted of framing a charge containing two contradictory statements of such a nature that the two, when taken in combination, disclosed the specific offence of intentionally giving false evidence." s Accordingly, it has been held in Bombay that each of the statements relied on must be sufficient to constitute the offence charged. A charge alleged a false statement made to a public officer, and a contradictory statement

1 Reg. v. Bidu Noshyo, 13 B.L.R. 325; Reg. v. Nomal, 4 B.L.R. A. Cr. 9, 12; S.C. 12 Suth. Cr. 69; Reg. v. Ghulet, 7 All. 44; Nathu Sheikh v. Reg., 10 Cal. 405; Reg. v. Ramji Sajabarao, 10 Bom. 124. See as to contradictory statements in the same deposition; Re Palani Palagan, 26 Mad. 55. 2 Crim. P.C. 1882 and 1898, Sched. v., Form xxviii. (ii.) 4.

* Per Morris, J., 13 B.L.R., at p. 335; S.C. 21 Suth. Cr., at p. 75.

1

on oath made to a magistrate, and alleged that by virtue of such statements he had committed an offence punishable under s. 182 or 193.. It was held that if it was intended to charge two offences in the alternative, the charge was bad as not being framed in accordance with s. 233 of the Crim. P.C., 1882. But if the charge was to be taken as framed under Sched. v., xxviii. (ii.) 4, then there could be no conviction, as a false statement under s. 182 could not constitute an offence under s. 193, or rice versa. Wedderburn, J., said: "He cannot successfully be charged under s. 193 of the Indian Penal Code, because he only gave one deposition in which there are no discrepancies; and, similarly, he cannot be charged under s. 182, for he only once gave information to a public servant." Nor can separate charges be framed for each offence, for unless there is evidence as to the falsity of either statement, both must fail. It certainly seems to me that this mode of charging two contradictory statements, made at different times, as making out a single offence, does not come within the terms of s. 72 of the Penal Code. It would be impossible under that section to charge two different acts of housebreaking on different nights, and to conclude that by means of one or other of them the accused committed an offence under s. 456. The whole procedure seems to rest on the fact, that the particular form which authorizes such a mode of charge is contained in the schedule to the Crim. P.C., and is sanctioned by s. 554.

336. Where it is intended to support a charge of false evidence, by proving contradictory depositions given before different tribunals, the proper sanction must be obtained for a prosecution on each branch of the alternative. And similarly, there must be a sufficient committal to justify an independent trial for each false statement.1

3

1337. Fabricating False Evidence. The offence of fabricating false evidence under s. 192 involves three elements (1) the causing the existence of any circum

1 Reg. v. Ramji Sajabarao, 10 Bom. 124, at p. 129; Reg. v. Bharma, 11 Bom. 702; Cf. Reg. v. Khem, 22 All. 115.

2 Reg. v. Mugappa, F.B. 18 Bom. 377.

8 In re Balaji Setaram, 11 Bom. H. C. 34.

4 So held with reference to Act XXV. of 1861, s. 172. See Crim. P.C. 1882, ss. 477, 478; Reg. v. Mati Khowa, 3 B.L.R. A. Cr. 36; S.C. 12 Suth. Cr. 31; Reg. v. Nomal, 4 B.L.R. A. Cr. 9; S.C. 12 Suth. Cr. 69.

stance, or making any false entry, or any document containing a false statement; (2) with the intention that it may appear in evidence in a judicial proceeding, or a proceeding taken by law before a public servant as such, or before an arbitrator; (3) in order to cause any person whose duty it is in such proceeding to form an opinion upon the evidence, to arrive at an erroneous opinion on any point material to the result of such proceeding.

A person who put stolen goods in a man's box, with a view to bringing a false charge of theft against him;1or who altered the position of a Government boundary stone, with a view to proceedings affecting the limits of his land; or who changed the contents of a bag of samples, which was to be produced in a suit on a warranty, would be causing a circumstance to exist within the meaning of s. 192. The insertion in an account-book, which is admissible evidence under the Evidence Act, s. 34, that money had been received or paid; or the entry in a revenue record that a particular person was in possession of land, or had paid revenue in respect of it, would be similarly punishable. Anything is a false statement which embodies a fact capable of being used in evidence; and anything under s. 29 is a document upon which such matter is capable of being visibly expressed. A claimant in a pedigree case, who substituted for a genuine tombstone a false one, which contained an untrue statement as to a marriage, a birth, the date of a death, or the like, would also be making a document containing a false statement. Where a person at the instigation of the defendant applied to a stamp vendor for a stamp, giving his name as Chatter Singh, and thereby procured the usual endorsement to be made on the stamp, showing a sale to Chatter Singh, in order to use it in subsequent proceedings against him; it was held that the defendant had thereby fabricated false evidence.3

¶338. The intention must be that the thing so fabricated should be used as evidence, and this intention must have existed at the time of the fabrication. It must therefore be something capable of being so used. False statements contained in mere applications to a court or 1 Reg. v. Soonder Putnaik, 3 Suth. Cr. 59. 2 Reg. v. Verones (1891), 1 Q.B. 360.

8 Reg. v. Mula, 2 All. 105.

Lakshmaji v. Reg., 7 Mad., at p. 290.

public officer, which are not in themselves evidence of the facts they assert, do not come within this section.1 A police officer suppressed certain reports, and then made an entry in his diary that he had forwarded them, no doubt with the intention of producing the entry as evidence in his own behalf if any charge was brought against him. It was held that this was not an offence within s. 192, as the entry, though admissible against him, could not have been used for him.2 The entry might have been very much in his favour in the event of a merely departmental inquiry, but this would not come within the section as "a proceeding taken by law before a public servant." It is not, however, by any means clear that the defendant could not have managed to get the Court to look at the entry as corroborative evidence, or as showing the course of proceedings in his office, and, if received, it would have been very material. A witness may be indicted for giving evidence that is false, though, as a matter of law, it ought not to have been admitted.3

339. Where it is not the intention of the accused to use the fabricated evidence in a judicial proceeding, the nature of which is discussed hereafter (¶¶ 343-345), or before an arbitrator, it must be intended to be used in a proceeding taken by law before a public servant as such. Where the lessee of a forest presented false accounts to a forest office in order to defraud the Government, it was held that he had not committed an offence within the meaning of s. 192. The Court said: "It does not appear that the forest officer was empowered by law to hold an investigation and take evidence in any matter at all. His functions seem to be purely ministerial, and no proceedings, by way of investigation, being provided for and regulated by law, the statement laid before him, though false, would not be false evidence fabricated so as to expose the fabricator to the penalties of s. 193." 4

340. Finally, the object of the fabrication must be to cause any person-whether judge, juryman, or assessorwho had in the proceeding to form an opinion upon the evidence, to entertain an erroneous opinion upon some

1 Reg. v. Kartick, 9 Suth. Cr. 58; Reg. v. Haran, 2 B.L.R. A. Cr. 1; S.C. 10 Suth. Cr. 31.

2 Reg. v. Gauri Shanker, 6 All. 42.

8 Reg. v. Gibbons, 31 L.J. M.C. 98; S.C. L. & C. 109.

4 Reg. v. Ramajirav, 12 Bom. H.C. 1, at p. 6.